The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff is a state prisoner proceeding pro se who seeks relief pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
Plaintiff previously filed a complaint seeking relief under 42 U.S.C. § 1983, which complaint remains pending under case number 10-cv-0766 KJM DAD (the "First Action").*fn1 On December 1, 2011, plaintiff filed a second amended complaint in 10-cv-0766. See Case No. 10-cv-0766, Doc. No. 59. By order entered January 5, 2012, the court directed the Clerk to open a separate action and to file the second amended complaint in the new action. See Case No. 10-cv-0766, Doc. No. 60. The second amended complaint is accordingly the operative complaint in this new action, which has been assigned to the undersigned.
Plaintiff was granted leave to proceed in forma pauperis in case no. 10-cv-0766. Plaintiff has not, however, filed an in forma pauperis affidavit or paid the required filing fee in this new action. See 28 U.S.C. §§ 1914(a), 1915(a). Plaintiff will be provided the opportunity either to submit the appropriate affidavit in support of a request to proceed in forma pauperis or to submit the appropriate filing fee.
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A.
Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. at 1974). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849 (1969).
The complaint raises thirteen numbered counts against twenty-three separate defendants. In addition, some actors identified in the plaintiff's complaint are not named as defendants in the action. Furthermore, the allegations raised in the Complaint are largely conclusory and vague, and do not appear to stand on their own, as required by Local Rule 220. Instead, plaintiff appears to be building on the allegations and exhibits he submitted in prior complaints, which were the subject of the First Action. On September 16, 2010, the court advised plaintiff of Local Rule 220's requirement that each complaint be complete in itself, see Case No. 10-cv-0766, Doc. No. 9; therefore, the court will review the current operative complaint without reference to previously-filed complaints or exhibits.
Summary of the Individual Claims Eighth Amendment: Failure to Protect from Harm (Counts 1 and 4)
Plaintiff alleges that he is an HIV positive inmate housed at CSP-Sac who was stabbed by his cellmate on an unspecified date. Plaintiff claims that defendants A. Masuret, T. Woods, J. Bal and V. Muni knew of plaintiff's medical ailments and disability but failed to protect him from harm, in violation of the Eighth Amendment. Plaintiff claims that the Warden has declared his HIV to be covered by the American with Disabilities Act (the "ADA"), and that Dr. Nanagalama issued a "single cell chrono" on April 24, 2009, but that defendants placed plaintiff with a violent cellmate anyway, resulting in the attack on plaintiff. Plaintiff claims that defendant Officer Harvey forced him to accept a cellmate.
Plaintiff additionally alleges that Sgt. Baker, who is not named as a defendant, also knew of plaintiff's ailments and disability but failed to protect plaintiff from harm. Plaintiff alleges that Sgt. Baker authorized the assailant cellmate to be placed with plaintiff even though Sgt. Baker knew the cellmate's violent history.
Plaintiff further alleges that Mr. Schroeder, Mr. Macober, and Mr. Hontz, who are also not named as defendants, used deceptive practices to get plaintiff to sign off on placement with an enemy.
Sgt. Baker, Mr. Schroeder, Mr. Macober, and Mr. Hontz are included in the narrative portions of plaintiff's complaint, but they are not specifically named as defendants in the action. See Complaint, p. 2, Section III "Defendants." All four were previously named as a defendant in the First Complaint; however, as noted above, this complaint is being reviewed as a complete document in itself and cannot be supplemented by previously filed documents.
First Amendment: Retaliation (Count 1)
Plaintiff alleges that after he filed complaints against the medical staff, defendants Bal, A. Deems and D. Winslow "use[d] a CODE OF SILENCE to cover it up." See Complaint at 6. Plaintiff does not describe the cover-up, nor does he allege what adverse action defendants Bal, A. Deems, and D. Winslow took, or ...